ALLA COAL v OSM; Docket No. NX 9-36-R (November 27, 1979)

TYPE: ALJ Hearing: Decision  

NAME: ALLA COAL CORP., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent

DATE: November 27, 1979  

CASE-NO: Docket No. NX 9-36-R  

PROCEEDING: Application for Review, Notice of Violation No. 79-II-24-5  

COUNSEL: James G. Tyler, Esquire, P.O. Box 100, Tell City, Indiana, for Applicant; Charles P. Gault, Esquire, Office
of the Field Solicitor, U.S. Department of the Interior, Knoxville, Tennessee, for Respondent.  

OPINIONBY: Administrative Law Judge Truswell  

OPINION:

BACKGROUND  

   In accordance with Section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Alla Coal
Corp., applicant, applied on March 26, 1979 for review of a notice of violation issued by the Office of Surface Mining
Reclamation and Enforcement, respondent, under section 521(a) (3) of the Act.  

   A hearing was held before the undersigned in Evansville, Indiana, on August 30, 1979.  

   FACTS

   The mine in question is located in Letcher County, Kentucky and bears Permit No. 6287-77.  

   On February 27, 1979 Notice of Violation No. 79-II-24-5 was issued to applicant citing two violations: (1) Failure to
have all required information on mine identification sign posted at junction of mine access road with bottom fork road,
in violation of 715.12(b); and (2) Failure to maintain proper sufrace and drainage on access road.  Sediment from road
runoff reaching private property in violation of 715.17(1) (3).  

     Remedial action required was as follows: Violation No. 1 of 2, "Mine identification sign needs company mailing
address, phone number and deep mine license number to be complete."; Violation No. 2 of 2, "Pull ditch line and
maintain culverts in proper working order." "Cover and maintain durable material on full length of access road surface."
March 13, 1979 was established as the abatement date.  Abatement having been accomplished, Violation No. 1 was
terminated on that date.  The abatement date was extended to March 27, 1979 for Violation No. 2 and this violation was
terminated on April 4, 1979.  

   At the commencement of the hearing, applicant's attorney conceded Violation No. 1 (Tr. 4).  

   ISSUE  

   The issue is whether applicant maintained proper surface and drainage on the access road as required by 30 CFR
715.17(1) (3)?  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

   30 CFR 715.17(1) (3) reads as follows:  

      (3) Maintenance.  (i) Access and haul roads shall be routinely maintained by means such as, but not limited to,
wetting, scraping or surfacing.  

      (ii) Ditches, culverts, frains, trash racks, debris basins and other structures serving to drain access and haul roads
shall not be restricted or blocked in any manner that impedes drainage or adversely affects the intended purpose of the
structure.  

      There were but two witnesses: OSM inspector David Eugene Schindler and applicant vice-president Mark H. Bruce. 
Both are able and direct and counsel for each party in his summation stated that the testimony was truthful and
consistent (Tr. 59 & 64).  Since this is not a review of a proposed assessment, testimony with particular relevancy to the
assignment of points under 30 CFR 723.12 will not be set forth or considered.  Consequently the discussion will be
most brief.  

      Mr. Schindler inspected the minesite on February 27, 1979 (Tr. 9) as the result of a citizen's complaint (Tr. 8, Exh.
#5).  The complaint stated that silt was coming off applicant's property thereby damaging his property.  At the time of
inspection, the weather was freezing and thawing (Tr. 10).  In the past coal had been deposited on the road as a surface
(Tr. 10-11).  The road was eroded in some places down to bedrock, two of the curlverts placed in the road were partially
blocked, and it was evident that water had traveled down the road surface instead of the ditch line (Tr. 11).  The ditch
line was not functioning as a drainage device since at places it had filled to where it was about level with the road
surface and water there would get over on the raod surface itself (Tr. 11-12).  The ditch line was filled with material
which had sloughed off or washed off the road while the culverts were partially blocked with organic material, leaves,
tree limbs and so forth (Tr. 12).  On the property of the citizen who complained there was coal and earth material which
had washed off the road (Tr. 12).  

      Mr. Bruce testified that applicant became involved in this site in 1977. Prior to its present operation it had a strip
mine operation which it completed prior to the effective date of the initial regulatory program and the reclamation work
was pretty well done in 1978.  In the winter of 1978 and 1979 applicant began construction of a deep mine on the site
(Tr. 32).  Since that time the mine has become operational and coal is being removed from the underground seam. 
When Mr. Schindler made his inspection in February of this year the mine was still in the construction phase (Tr. 33). 
Mr. Bruce answered that prior to the inspection he was last at the mine site in December of 1978 but from his general
knowledge of the situation it would have been difficult to maintain the road and ditch line (Tr. 40).  During the face - up
work on the deep mine applicant's vehicles and equipment traveled the road in question and some of the equipment
actually worked on the road itself (Tr. 48).  

      It would appear that inattention to regulations rather than weather conditions prevented applicant from maintaining
the road, culverts, and ditch. Violation No. 1 was admitted and there all that was required for compliance was to place
required information on the mine identification sign.  Also it would  appear that despite weather conditions, applicant
could and should have cleared the culverts and maintained them in working order.  

      As I reviewed the case preparatory to writing a decision I was concerned with the nature of the mine and so wrote
the following memo to the attorneys for the parties:  

      Mark H. Bruce testified that applicant first had its strip mine operation reclaimed and released and then obtained
approval of Kentucky for a deep mine operation before doing any construction work (Tr. 42).  

   Are we then dealing with a surface mine as indicated on the notice of violation?  

   Is State Permit No. 6287-77 the correct permit?  

   Is Section 715.17(1) (3) of the regulations the provision violated?....  

      Eventually applicant furnished a copy of its license application for an underground mine which shows that it was
received by the State on February 21, 1979.  The State in an undated letter enclosed applicant's 1979 license.  All of the
above has been made part of the record.  

      As a part of the process of obtaining its surface mining permit, applicant posted a reclamation bond for the area
involved in its mining operations (Tr. 19).  The access road which is the subject of this action was bonded as part of the
strip permit (Tr. 19).  When mining is completed, all of the permitted and bonded area is to be reclaimed by the
operator, even the access roads (Tr. 20).  The bond is posted to insure this reclamation (Tr. 20).  

      It is doubtful that applicant had reclaimed the entire area permitted under its surface mining permit prior to OSM's
inspection.  The access road may not have been reclaimed and the reclamation bond may not have been released (Tr.
18-20).  There is confusion on this point.  Mr. Bruce testified that the entire job was approved and released by Kentucky
before there was any construction on the deep mine because they didn't want them to overlap and raise questions.  Mr.
Bruce, however, also testified: "...we had all the reclamation pretty well done in 1978 on the strip mine permit." (Tr.
32); that he did not know whether the release was a grading release or a complete rock release (Tr. 56) and; that he
believed the reclamation bond for the surface mine was left for the deep mine (Tr. 42-43, 55).  At the time of the
inspection, applicant was doing work preparing the site for a deep mine operation (Tr. 47, 48).  Vehicles and equipment
traveled the access road during these preparation activities (Tr. 48).  

      Under the interim regulatory program, OSM had jurisdiction to regulate all sites where surface coal mining and
reclamation operations have been conducted since February 3, 1978 for new mines and May 3, 1978 for existing mines. 
30 CFR Sections 700.11 and 710.11.  Surface coal mining and reclamation operations are defined by Section 700.5 of
the Regulations to include, "...all activities necessary and incidental to the reclamation of such operations.  This term
includes the term "surface coal mining operation."" The term surface coal mining operations includes, "...surface
operations and surface impacts incident to an underground coal mine...all lands affected by the construction of new
roads or the improvement or use of existing roads to gain access to the site  of such activities for haulage and
excavation..." Applicant was conducting operations on this site which placed it under OSM jurisdiction.  

      The condition of applicant's road constituted a violation of the interim regulations.  30 CFR Sections 715.17(1) (3)
and 717.17(j) (3) are identically worded sections of the regulations which direct that, "access and haul roads shall be
routinely maintained by means such as, but not limited to, wetting, scrapping or surfacing.  (ii) Ditches, culverts...shall
not be restricted or blocked in any manner which impedes drainage or adversely affects the intended purpose of the
structure." Section 715.17(1) (3) is in the general section entitled, "General Performance Standards".  Section 717.17(j)
(3) is in the general section entitled, "Underground Mining General Performance Standards".  

      Due to the state of affairs existing at this site, it is questionable whether the access road would be covered by the
surface mining sections of the regulations or the underground mining sections or by both.  The two regulations are
worded identically so the difference is technical only.  

   The Act at Section 525(a) (5) states:  

      Notices and orders issued pursuant to this section shall set forth with reasonable specificity the nature of the
violation and the remedial action required, the period of time established for abatement, and a reasonable description of
the...operation to which the notice or order applies.  

      The Act requires only the information set out above.  An examination of Exhibit #1 reveals that such information
was in fact furnished.  The sign at the foot of the road bearing State Surface Mine Permit number 628777 (Tr. 19)
perhaps invited the selection of 30 CFR 715.17(1) (3).  

      I find that on the date of inspection and service of the notice of violation that applicant was preparing a deep mine
for production and that the provision of the regulations violated should have been cited as 30 CFR 717.17(j) (3).  The
error made by the inspector was harmless.  Applicant has not been prejudiced by this error.  I further find that OSM has
established a prima facie case as to the validity of Violation No. 2 of Notice of Violation No.79-II-24-5 and that
applicant has not met the ultimate burden of persuasion.  40 CFR 4.1171.  

   ORDER  

      Notice of Violation No. 79-II-24-5, February 27, 1979, is sustained as to Violations No. 1 and No. 2.  This decision
may be appealed in accordance with 43 CFR 4.1271 by filing a notice of appeal within 30 days from receipt of this
decision with the Board of Surface Mining and Reclamation Appeals, U.S. Department of the Interior, 4015 Wilson
Boulevard, Arlington, Virginia 22203.